Federal Court Approves Landmark ADA Consent Decree Against Nike

Lawsuit alleged Nike failed to accommodate California customers with hearing disabilities

April 22, 2021 – Describing the parties’ settlement as “fabulous” and “incredible,” and a “great result for people who really needed help,” federal district court judge Yvonne Gonzalez Rogers on April 20, 2021 granted final approval to a landmark disabilities rights settlement negotiated under the Americans with Disabilities Act and California’s Unruh Act, Disabled Persons Act, and Unfair Competition Law by Altshuler Berzon LLP partners Michael Rubin and Eve Cervantez and their co-counsel. The court’s written settlement approval order, dated April 22, 2021, is attached here.

Plaintiff Cali Bun, a 22-year-old college student who is profoundly hard of hearing, brought this case in the fall of 2020 after employees at a Nike retail store in San Diego, who were wearing opaque masks in response to the COVID-19 pandemic, refused to accommodate her hearing disability, thereby making it extremely hard for her communicate. Ms Bunn brought this action on behalf of a statewide class of all persons who are deaf or hard of hearing and who visited or attempted to visit a Nike store in California on or after July 2020, when Nike’s mask mandate went into effect.

Although the Unruh Act and Disabled Persons Act provide statutory penalties of $4,000 and $1,000 per violation, respectively, Ms. Bunn and her counsel decided to focus on the class members’ need for immediate injunctive relief. With the assistance of Altshuler Berzon LLP attorneys, plaintiff successfully an injunctive-relief-only settlement under Rule 23(b)(2), which did not require class notice or a two-step approval procedure, and which went into effect on January 22, 2021, just four months after the lawsuit was filed and three months before judicial approval of the settlement – a true example of prompt and comprehensive justice.

Under the judicially approved settlement:

  1. Nike is required to provide all of its California stores with (a) transparent face masks (i.e., cloth masks with clear-plastic inserts that permit the customer to observe the store employees’ facial expressions) and (b) clean pen-and-paper sets, to be used whenever  a customer requests a hearing accommodation;
  2. Nike is required to post notices at all of its California store entrances (using language and graphics negotiated in the settlement) informing customers that accommodations are available for customers with hearing loss; and
  3. Nike is required to provide guidance and communications to its California store employees to accommodate customers who are having difficulty communicating due to an employee wearing an opaque face covering.

Each of these mandatory terms remains in effect and requires ongoing compliance until the pandemic eases and Nike’s retail store employees are no longer required to wear masks when interacting with customers in California.

Because the settlement focused on obtaining immediate injunctive relief, it left undisturbed any claims for monetary damages or statutory penalties that any class members may subsequently assert against Nike in their own lawsuits. The class releases expressly carve out all such economic claims, other than the named plaintiff’s, whose efforts in bringing this lawsuit and assisting in its prosecution drew special praise from the district court judge – who also noted that counsel’s appearance for the settlement approval was the first court appearance by counsel in the case. The lawsuit was thus successfully resolved without any discovery disputes, pre-trial motions, or other court proceedings that could have delayed the negotiation or implementation of the groundbreaking settlement terms.

According to Nike’s post-settlement compliance report, the company achieved full compliance with all required terms of the injunction by the agreed-upon deadline of January 22, 2021.